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Waterkeepers Hope Lawsuit Threat Cleans Up Farm

BERLIN – Water pollution is the issue, not whether a mound of material on the Hudson Farm is chicken or human waste, said the Waterkeepers this week after controversy erupted over an intended citizen lawsuit against the Hudson Farm and Perdue Chicken over contaminated farm run-off.

“It’s not really about the pile. It’s about the discharge coming off the farm. It’s about getting the ditch cleaned up,” said Kathy Phillips, the Assateague Coastkeeper.

The notice of intent to file a lawsuit sent last week contends that Hudson Farm is discharging contaminated water into a ditch that leads to Franklin Branch, which empties into the Pocomoke River, which flows into the Chesapeake Bay. Both the Pocomoke and the Chesapeake are listed as impaired waters.

“Obviously there’s something getting into that ditch from that farm to cause those huge spikes in E. Coli and fecal coliform,” said Scott Edwards, Director of Advocacy for the Waterkeeper Alliance. “Whether it’s chicken waste or human waste, someone’s got to do something.”

The Maryland Department of the Environment has confirmed that the pile of material in question is treated human sewage sludge from Ocean City and not chicken litter.

In a statement issued this week, Phillips said, “If Perdue and Hudson try to claim that human sewage trucked into the farm is a safe Class A biosolid, then they need to explain why we found fecal coliform levels at 100-200 times what the EPA allows for Class A biosolids. The levels we detected are comparable to what you would find in a pit of raw, untreated sewage still in liquid form.”

Phillips stumbled over the situation in October on an aerial survey flight concentrating on a different site, right after taking off from the Ocean City Airport. She noticed a pile of material and drainage channels from that pile leading to a drainage ditch.

“There was a small hand dug trench that carries the waste run-off to the ditch,” said Phillips. “Just the fact it was draining directly into the ditch, that was a no-no.”

Phillips said she then researched the topography, where the ditch originated, and where it drained to, and realized that the ditch only carried stormwater from the Hudson Farm and drained into a waterway that eventually reached the Chesapeake Bay. From public land, as close as she could get, Phillips then took water samples from the ditch and had them analyzed at a state certified lab in Salisbury.

The lab turned up elevated readings of arsenic, ammonia, phosphorous, and nitrogen as well as elevated counts of E. Coli and fecal coliform bacteria.

Phillips said those numbers warranted further sampling, since they indicated run-off from the farm, but were not greatly alarming. The third sample, however, did set off alarm bells.

“The lab called us and told us they needed one more day because they needed to check the results, because the numbers were so off the charts,” Phillips said.

Those numbers could only be explained by farm run-off, according to Phillips.

“The farm is clearly discharging to waters of the state,” said Phillips. “Any discharge of waste like that is a Clean Water Act violation.”

Thus the lawsuit, Edwards said.

“Things happened when all the pieces of evidence were in place to warrant the action. We don’t fly off the handle … Everything was carefully thought out. We filed when everything was ready to go,” Edwards said.

The Waterkeeper Alliance has used Clean Water Act citizen lawsuits, or the threat of legal action, successfully in other areas to eliminate or reduce pollution sources, such as in the hog farming industry in North Carolina.

“We are anti-pollution. The biggest tool that folks who advocate for clean water have at their disposal is a Clean Water Act lawsuit. It really does make a big difference,” said Edwards.

The goal of the lawsuit is to get that site cleaned up and stop the water pollution, Edwards said.

Any fines assessed in a Clean Water Act suit must be paid to the federal government. No environmental organization, or citizen advocate, benefits financially from such actions.

“Penalties, we don’t get a dime of them,” Edwards said.

The Waterkeepers would also like to see the big chicken companies like Perdue, also known as integrators, held responsible.

“They really do assert a high level of authority over the industry, top to bottom. The only thing they don’t take authority over is the waste that comes out of those chickens,” Edwards said. “Those chickens don’t belong to those farmers. Those chickens belong to the integrator.”

The integrator’s role in disposing of its product’s byproducts needs to change, said Edwards.

“If Perdue takes on this responsibility, then it’s not on the back of individual growers,” Edwards said. “Perdue has the capacity and resources to take on responsibility for the manure.”

This position has been supported in federal case law, according to Edwards.

It would be great, he said, if the Hudson and Perdue situation serves as a bit of a wake up call to other poultry growers to be more careful with their chicken manure.

The Waterkeepers are not targeting the chicken industry, he went on to say. Big factory chicken farms are no different than paper mills or chemical factories to the organization if they are polluting the water, according to Edwards.

“We’re concerned citizens who have a real interest in clean water. That’s all that drives us. We’re not looking to drive anyone out of business. We’re not looking to get rich,” Edwards said.

Phillips acknowledged that most poultry farmers follow the rules.

“What I’m hoping for is this will open up a dialogue between the state and federal governments and agricultural community to stop trying to find excuses for dealing with all this waste from the poultry industry. Face the issue head on,” said Phillips. The state needs to offer farmers more help with manure storage sheds, for example.

The lawsuit has not been filed yet, Edwards and Phillips emphasized. The notice of intent to file a lawsuit gives the targets 60 days to satisfy their accusers that the allegations, have been corrected or are incorrect, before an actual Clean Water Act lawsuit is filed over the apparent violation. Many of these cases never get to the lawsuit stage, Edwards said, but are settled prior to that point.